Commonwealth v. Fox

406 A.2d 1072, 267 Pa. Super. 341, 1979 Pa. Super. LEXIS 2676
CourtSuperior Court of Pennsylvania
DecidedJune 28, 1979
Docket332
StatusPublished
Cited by11 cases

This text of 406 A.2d 1072 (Commonwealth v. Fox) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Fox, 406 A.2d 1072, 267 Pa. Super. 341, 1979 Pa. Super. LEXIS 2676 (Pa. Ct. App. 1979).

Opinions

PRICE, Judge:

This appeal arises from denial in the court below of appellant’s motions in arrest of judgment and for a new trial, following his conviction after a non-jury trial of possession of a controlled substance1 and possession with intent to deliver.2 On appeal, appellant asserts that his right to a speedy trial was violated, that there was no probable cause to support his warrantless arrest, and that the suppression court erroneously restricted defense counsel’s cross-examination of the arresting officer.3 For the reasons set forth herein, we remand the ease to the court below.

We first consider appellant’s attack on probable cause. On October 10, 1975, Trooper Robert Kessler, Pennsylvania [344]*344State Police, received a telephone call from a confidential informant with whom he agreed to meet. When the two met at approximately 7:40 p. m., the informant led Trooper Kessler to 3107 East Market Street, York, the residence of one Benjamin Mathis, where he said he had visited earlier that day. While there, the informant observed drugs and related paraphernalia and heard Mathis’ side of a certain telephone conversation. From that conversation and arrangements he then made with Mathis for a drug purchase, he concluded that appellant and a female companion were to come by the premises within a short time to deliver a quantity of cocaine. Trooper Kessler took the informant back to his car, parked nearby, and, at approximately 9:00 p. m., the trooper, armed with neither a search nor arrest warrant, returned to East Market Street with a group of police officers to await appellant’s arrival. An unmarked police car, hood open and blinkers flashing, was positioned to block the driveway to 3107 East Market. At approximately 9:25 p. m., appellant and a female companion arrived in a car matching the description given by the informant. As appellant approached the house, he was ordered to raise his hands into the air. He dropped a shaving kit to the ground, a search of which revealed the controlled substances and paraphernalia that led to his conviction.

In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the Supreme Court ruled that before a magistrate may issue a warrant, he must be supplied with sufficient evidence to permit him to make an independent judgment of the informant’s reliability. Subsequent to Aguilar, the Supreme Court stated that the judgment required of a magistrate in passing on the validity of an affidavit is the same as that required of an officer in judging probable cause for a warrantless arrest, Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

“[L]ess stringent standards for reviewing the officer’s discretion in effecting a warrantless arrest and search would discourage resort to the procedures for obtaining a warrant. Thus the standards applicable to the factual [345]*345basis supporting the officer’s probable cause assessment at the time of the challenged arrest and search are at least as stringent as the standards applied with respect to the magistrate’s assessment.” Whiteley v. Warden, 401 U.S. 560, 566, 91 S.Ct. 1031, 1036, 28 L.Ed.2d 306 (1971).

In Commonwealth v. Bishop, 425 Pa. 175, 228 A.2d 661 (1967), our supreme court held that probable cause for a warrantless arrest exists if the facts and circumstances which are within the knowledge of the officer at the time of arrest, and of which he has reasonably trustworthy information, are adequate to warrant a man of reasonable caution in the belief that the suspect has committed or is committing a crime.

Trooper Kessler testified at the suppression hearing that the informant was known to him personally, and that prior to this incident, he had given reliable information leading to five or more arrests for possession and possession with intent to deliver, and one arrest for armed robbery. Further, the car that arrived at the scene at 9:25 p. m., matched the description given by the informant. Trooper Kessler recognized appellant, who was, as the informant had said, in the company of a woman, when he got out of the vehicle and walked up the driveway.

Appellant would have us conclude that there was no probable cause for a warrantless arrest because Benjamin Mathis’ reliability was not established. Appellant urges that the informant’s tip to the trooper regarding Mathis’ telephone conversation was hearsay on hearsay.

We note first that Commonwealth v. White, 447 Pa. 331, 290 A.2d 246 (1972), countenances hearsay on hearsay as a valid basis for a finding of probable cause. Further, in this case, Mathis’ report to the informant that appellant would be arriving with the cocaine was not the sole basis for the informant’s tip to police. The informant himself was present at the Mathis residence and heard Ms part of the conversation. On that basis, the informant and Mathis arranged a sale. This information, coming from an infor[346]*346mant reliable in the past, buttressed by the independent observation of appellant and his companion in the automobile described, further strengthened by the pair’s approach of the house, each of them with carrying cases in tow, was certainly information adequate to warrant a man of reasonable caution in the belief that the suspect had committed or was committing a crime. We therefore find no error in the suppression court’s refusal to suppress the confiscated matter.

Appellant next cites Commonwealth v. Hall, 451 Pa. 201, 302 A.2d 342 (1973), to support his position that the court erred in refusing to compel the Commonwealth to admit or deny the identity of the confidential informant at the suppression hearing. In Hall, the supreme court remanded for a new suppression hearing, declaring:

“It must be concluded that appellant at the suppression hearing should have been afforded the opportunity through ‘the traditional safeguard’ of cross-examination, to test the truthfulness of the recitals in the warrant alleging the informant’s previous reliability.” Id., 451 Pa. at 208, 302 A.2d at 346.

In Hall, the police had obtained a search warrant based upon information received from a confidential informant in five cases over the previous two years. Three of the actions resulted in convictions, the affidavit specified, and two were still pending. Defense counsel, in cross-examining the police officer-affiant at the suppression hearing, asked for the names of individuals previously arrested. The court refused to permit the question and, the supreme court determined, thereby thwarted the appellant’s right to determine the reliability of the unnamed informant. The court observed:

“The purpose of the question was to explore the veracity of the facts recited in the affidavit supporting the warrant. Counsel expressly disavowed any intention of ascertaining the identity of the informant,

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Commonwealth v. Fox
406 A.2d 1072 (Superior Court of Pennsylvania, 1979)

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Bluebook (online)
406 A.2d 1072, 267 Pa. Super. 341, 1979 Pa. Super. LEXIS 2676, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-fox-pasuperct-1979.